The Last Word

Created: 01.19.2018

The Road to Arkansas Tort Reform

By Carl Vogelpohl

In 2018, Arkansas voters have the opportunity to enact meaningful civil justice “tort” reform. A coalition representing a diverse group of Arkansans, including the Arkansas Trucking Association, has banded together to take a stand against out-of-control trial lawyers. This coalition wants to limit the financial windfall reaped by trial lawyers who use the threat of unreasonable “nuclear verdicts” to unfairly harm truckers, small business owners, farmers, doctors and job creators in Arkansas.

Studies show that the threat of unlimited verdicts hurts not just jobs in the trucking industry but all small businesses. The Institute for Legal Reform notes that over three-quarters of small businesses fear they will be the target of unjustifiable lawsuits. And The Wall Street Journal has noted that some insurers have dropped coverage in the past few years for certain types of fleets. And the rates for the coverage that has remained have skyrocketed.

Arkansans deserve to have a fair, common-sense civil justice system that allows our state to better compete with surrounding states for doctors and jobs.

In 2003, the Arkansas General Assembly created a better system with the Civil Justice Reform Act. But over the past 14 years, the Arkansas Supreme Court has reversed that progress and made it clear that the Arkansas Constitution has to be amended to have meaningful tort reform. So, in 2017, through the leadership of an overwhelming majority of the Arkansas legislature, Senate Joint Resolution 8 (SJR8) was referred to the voters.

SJR8 is a proposed constitutional amendment that preserves the right to a jury trial, the cornerstone of our judicial system. But, just as importantly, Arkansas lawmakers sought to protect Arkansas victims by limiting contingency fees in civil cases to no more than 33 1/3 percent of the net recovery. This will to put an end to out-of-control trial lawyers taking egregious amounts of a victim’s compensation.

Trial lawyers who oppose this amendment are already spreading misinformation by telling Arkansans that they will no longer be able to receive full compensation for economic damages. That’s just not true. In fact, SJR8 allows victims to be compensated for actual damages without caps or limits.

What SJR8 does cap are two items that have created outrageous “nuclear verdicts.” Punitive damage awards would be capped at the greater of $500,000 or three times the compensatory damage award for each claimant. Non-economic damage awards would be capped at $500,000 for each claimant, not to exceed $500,000 to be shared among the beneficiaries of a decedent in a wrongful death action.

But SJR8 goes beyond the immediate changes protecting Arkansans. Like many other states, the amendment will allow the legislature to make policy decisions regarding our civil justice system. Once again, the legislature can make decisions about reforms such as loser-pays, joint and several liability, or changes to our class-action rules.

None of the items in SJR8 are novel. Nineteen states have some form of limits on contingency fees for attorneys. Thirty-three states have some form of damage caps. In the federal court system, and in 16 states, the legislature has authority to approve and/or adopt court rules

This campaign will be one of the most competitive of the 2018 election in Arkansas. Although SJR8 is the single best opportunity to pass meaningful tort reform in our state and has broad support from a diverse coalition, it will face tough opposition. Billboard/TV trial lawyers have built an industry on aggressively marketing to potential clients and creating “lawsuit factories.” They oppose this amendment and will use whatever resources necessary and millions of dollars to defeat it.

Arkansans for Jobs and Justice is a legislative question committee formed in October of 2017 to work for the passage of SJR8 in November of 2018.

We need your help to make meaningful tort reform a reality for Arkansas. We need your leadership in your local community to educate Arkansans about the importance of this issue to our state’s future. And we also need your financial contribution to support the campaign. You can contribute, get involved and learn more about the campaign by visiting www.ARJobsandJustice.com.

It will take all of us working together to be successful.

Carl Vogelpohl is the campaign manager for Arkansans for Jobs and Justice. He is an Arkansas native who lives in Little Rock and is a campaign veteran of federal, state and local campaigns. His most recent public service was as chief of staff for Attorney General Leslie Rutledge. His prior service included serving as chief of staff for then Congressman Tim Griffin, Arkansas's current lt. governor.

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